Punjab

StateCommission

CC/13/2

Harnam Kaur - Complainant(s)

Versus

M/s Parsvnath Developers - Opp.Party(s)

Navin Kapur

19 Jan 2015

ORDER

                                                       FIRST ADDITIONAL BENCH

                                                         

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB   SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                                      Consumer Complaint No.02 of 2013.

 

 

                                                Date of Institution:    08.01.2013.

                                                Date of Decision:              19.01.2015.

 

 

1.      Harnam Kaur W/o Late Sh. Balwant Singh, R/o House    No.5695/A, Sector-38 (West), Chandigarh.

 

2.      Devinder Singh Marwaha S/o Late Sh. Balwant Singh, R/o      10,    Cumberland Avenue, Goring-By-Sea, Worthing, West        Sussex, BN12 6JX England.

 

3.      Ms. Balbinder Kaur Marwaha W/o Sh. Devinder Marwaha,       R/o    Cumberland Avenue, Goring-By-Sea, Worthing, West        Sussex, BN12 6JX England.

 

                                                                    …..Complainants

 

                                      Versus 

 

 

1.      M/s Parsavnath Developers (AOP), Mall Matrix, Site No.2,       Phase-VIII-B, Industrial Focal Point, Mohali, through its       Manager/Incharge.

 

2.      M/s Parsavnath Developers (AOP), Corporate Office, 6^th         Floor, Arunachal Building, 19, Barakhamba Road, New   Delhi-110001, through its Managing Director/Proprietor/      Manager/Incharge. 

 

 

                                                          …Opposite Parties.

 

 

Consumer Complaint U/s 17 of the Consumer Protection Act, 1986.

Before:-

 

                   Shri Baldev Singh Sekhon, Presiding Member.

                   Shri Harcharan Singh Guram, Member.                        

                   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Present

          For the complainants  :         Sh. Naveen Kapoor, Advocate.

          For the opposite parties:      Sh. Rahul Sharma, Advocate.

         

 

BALDEV SINGH SEKHON, PRESIDING MEMBER:-

 

 

                    This complaint has been filed by the complainants U/s 17 of the Consumer Protection Act against the deficiency in service and the mental harassment suffered by them at the hands of OPs.

2.           Briefly stated, the facts of the case are that opposite parties promoted a project of Real Estate Development under the name and style of “Matrix Mall” through duly printed brochures. The opposite parties assured that they had specified a particular space on the ground floor for installing ATM, which named as GF-ATM-4 (herein after referred to as “the ATM space”) and offered to sell the said space measuring approximately 162 sq.ft. (15.05 sq.mts.) of super area. Upon the said offer of the opposite parties, complainants no.2 & 3, who are living abroad, agreed to purchase the said ATM space. They purchased the said ATM space with the sole benefit of mother of complainant no.2 and mother-in-law of complainant no.3, so that from the proceeds earned from the ATM space as rental income, complainant no.1 could meet her day to day living expenses, who is living in India. An agreement Annexure C-1 was signed by complainants nos.2 & 3. Complainant no.2 made payments to OP-2 and receipts were issued by it from time to time, along with forwarding letter issued by OP-2. Although, as per above agreement, OPs were under obligation to handover possession of the ATM space within a maximum period of 30 months from the date of starting construction by OPs, which was informed by the OPs to have been commenced from July-August, 2006. The OPs assured to give possession in the beginning of 2009 and that the operation would start in March, 2009. Believing the assurances made by the OPs and on seeing in April, 2008 that the basic structure had already been raised, complainant no.2 started making payment towards cost of the ATM space in question w.e.f. 03.04.2008. However, despite having received almost total cost of the ATM space, the OPs have neither completed the project nor they are able to handover possession of the same in near future and, rather, the OPs are delaying the project without any rhyme and reason, on lame excuses. After repeatedly contacting the OPs on telephone, complainant no.2 received an E-mail communication from the OPs, explaining that on account of economy melt down and worldwide recession, the project is being delayed. Almost four years have already been passed, but the OPs have neither completed the project nor handed the possession of ATM space to the complainants and, thus, failed to adhere to the terms and conditions of the agreement. The complainant were ready to pay the said amount of 5% of the price in case the OPs had handed over the physical possession of the ATM space within the prescribed period of 30 months i.e. maximum by 31.01.2009. Complainant no.2 has to send money to complainant no.1 to enable her to meet her day to day living expenses for which the ATM space was proposed to be purchased and the details of the transactions are Annexures C-14 & C-15.  The OPs have received Rs.50,58,385.20, failed to complete the project or to handover possession of ATM space to the complainants, as a result thereof, they suffered harassment, mental torture and agony at the hand of the OPs. The complainants have sought for issuance of directions to the OPs to refund the amount of Rs.50,58,385.20 already paid by the complainants to them along with interest @ 18% p.a.; Rs.10 lacs as compensation; and Rs.35,000/- as litigation expenses.
3.            The opposite parties filed joint written reply, in which they admitted that the commercial space/flat in dispute was allotted to the complainant and the Buyer’s Agreement was executed between them. They also admitted that the Complex has not been completed so far and that the Agreement contained the clauses reproduced in the complaint. While disputing the other allegations made in the complaint, they pleaded that the completion of the construction has been delayed on account of the reasons, which were beyond their control. Such delays have been adequately taken care of in the Buyer’s Agreement as per clause 13(c). The interest on the delayed payments was charged from the complainant as per the terms and conditions of the Agreement. The Project is still on and they never diverted the Project fund fraudulently or with a mala fide intention. The Agreement is a complete Code and their relation with the complainant is governed by the terms and conditions thereof. As per clause 9(a) of that Agreement, in the event of cancellation of the allotment, after forfeiting 15% of the basic price of the earnest money, the balance amount is refundable with interest. In case the complainant is interested in the refund of the amounts so paid by him, he could apply for the cancellation and in that eventuality that amount after the payment of 15% shall be refunded to him, along with interest at the rate of 10% per annum as per clause 8(a). In case this Commission comes to the conclusion that the Project stands abandoned, in that eventuality also the complainant is entitled to the settlement only as per clause 8(b) of the Agreement. They also pleaded that the space in dispute is a commercial space situated in the Commercial Complex being developed by them and, as such, the complainant does not fall within the purview of the Act. There was no deficiency in service or unfair trade practice on their part. They prayed for the dismissal of the complaint with costs.
4.           To prove the allegations made in the complaint, the complainants proved on record affidavits of complainant no.1 Smt. Harnam Kaur as Ex.C-A and Ex.C-C, joint affidavit of complainants no.2 & 3 Ex.C-B along with documents Ex.C-1 to Ex.C-16. On the other hand, the OPs proved affidavit of Prehlad Kumar Jain, their President as Ex.RW/A along with resolution Ex.R-1 dated 30.05.2011.
5.           We have carefully gone through the averments made by the parties in the complaint and the written reply, the evidence produced by them in support of their respective averments and have heard the learned counsel on their behalf.
6.           It was submitted by the learned counsel for the complainants that the allegations made in the complaint stand proved from the affidavit of the complainant and the documents proved on the record. From that evidence, it stands proved that the space/flat in dispute was purchased by the complainants for earning livelihood by means of self-employment of complainant no.1, who is mother of complainant no.3 and mother-in-law of complainant no.3. Therefore, they falls under the definition of ‘consumer’ as contained in the Act. From that evidence, it also stands proved that after the construction of the super-structure and completion of flooring, no further progress has been made by the opposite parties to complete the Complex. As per the Payment Plan contained in the Agreement and to which the complainants had agreed, 95% of the basic price was payable upto the completion of the flooring and only 5% was payable at the time of offer of possession. In order to receive 95% of the price, the opposite parties completed the flooring and thereafter abandoned the Project and that stands proved from the deposition of the complainants proved on the record. No reasons, whatsoever, have been proved by the opposite parties for not completing the construction as per the Agreement. They were to complete the Complex within a period of 30 months of the commencement of the construction but miserably failed to do so. This clearly amounts to deficiency in service on their part, for which the complainants are entitled to the compensation as prayed in the complaint. As there is no possibility of the completion of the Complex nor the opposite parties have a bona fide intention to complete the same, so the complainants are entitled to the refund of the basic price paid by him along with interest at the rate of 24% per annum.
7.            On the other hand, it was submitted by the learned counsel for the opposite parties that the complainants have miserably failed to prove that they are a ‘consumers’ as per the definition contained in the Act. Admittedly, the space/flat, which they agreed to purchase, was commercial one situated in a Commercial Complex. So they are taken out of the purview of the definition of the ‘consumer’. There is nothing on the record for proving that they purchased that space/flat for earning his livelihood by way of self-employment. Therefore, the complaint is liable to be dismissed on that score alone. He further submitted that the construction of the Complex is still in progress and for the reasons beyond the control of the opposite parties they could not complete the same. If there is delay in completion thereof and delivery of possession of the space/flat in dispute, the complainant can only claim compensation at the rate of Rs.10/- per square feet as per clause 13(c) of the Agreement. They are not entitled to the refund of the amount paid by him nor they are entitled to any such interest or compensation.
8.           It is an admitted fact that the ATM space, which the complainants purchased from the opposite parties, vide Buyer’s Agreement Ex.C-1, is commercial situated in a Commercial Complex. When such is the position, apparently they do not fall under the definition of the ‘consumer’. However, as per the “Explanation” appended to the definition of the ‘consumer’, where the services are availed of exclusively for earning livelihood by means of self-employment, then the same does not fall under the clause “commercial purpose”. The complainants specifically alleged in his complaint that they intended to use the ATM space for earning livelihood by way of self-employment for complainant no.1, who is mother of complainant no.2 and mother-in-law of complainant no.3. They proved that allegation by making deposition to that effect in affidavits Ex.CA & Ex.C-C of complainant no.1. No evidence was produced by the opposite parties for rebutting that deposition of the complainant. They proved on record the affidavit of Prehlad Kumar Jain as Ex.R-1. It was never deposed in that affidavit that the complainants did not intend to use the ATM space to earn his livelihood by way of self-employment. It has been deposed in that affidavit that the transaction being purely commercial, the complainants do not fall within the purview of the Consumer Protection Act and making a false statement that the Complex is to be used by them to earn livelihood by way of selfemployment cannot bring them under the purview of that Act. The deposition of the complainants is the best evidence in order to determine as to for what purpose, he purchased the space/flat and it stands proved from his deposition that they had purchased it for earning livelihood of complainant no.1 by way of self-employment. Therefore, the complainants fall under the definition of the ‘consumer’ and the complaint filed by them is very much maintainable under the Act.
9.            As per the Buyer’s Agreement Ex.C-1, the basic price of the space/flat was fixed at Rs.53,24,616/- and at the time of execution of that Agreement, the complainants had already paid Rs.50,58,385/-. As per Annexure-1 of the Agreement, there were two Payment Plans and the complainants had agreed to Plan-B, which was construction linked. As per that Payment Plan, the balance price was payable in instalments as per the progress of the construction and 95% of that price was payable on the completion of the flooring. The opposite parties have not disputed or denied the allegations made in the complaint that after the raising of the super structure and the flooring no further progress has been made for the completion of the Complex. That fact duly stands proved from the affidavits Ex.C-A and Ex.C-C of the complainant no.1 and joint affidavit Ex.C-B of complainants no.2 & 3. No evidence was produced by the opposite parties for rebutting that evidence. Prehlad Kumar Jain, in his affidavit Ex.RW/A, only deposed to the effect that the Project is still on and has not been completed. He also stated that the same has been delayed on account of the reasons, which were beyond the control of the opposite parties.
10.           As per clause 13(a) of the Agreement, the construction of the Complex was to be completed within a period of 30 months of the commencement of the construction. The allegations made by the complainants in their complaint that the construction was started in July-August, 2006 was never disputed or denied by the opposite parties. Thus, as per the terms of the Agreement, the opposite parties were to complete the Complex on or before 1.2.2009. However, clause 13(a) itself provided that the completion of the Complex within the said period was subject to force majeure, including any restraints/restrictions from any authorities, non-availability of building materials or disputes with the Contractors/Force and circumstances beyond control of the developer and subject to timely payment by the flat buyers. As already said above, Prehlad Kumar Jain in his affidavit has deposed that the non-completion of the Project within the prescribed time was on account of the reasons beyond the control of the opposite parties. That bald statement is not sufficient for proving that the non-completion of the construction was beyond their control. They were required to disclose those reasons and were required to support the same by way of convincing and cogent evidence. How is it that for receiving 95% of the basic price of the space/flat, they raised the super structure and laid down the flooring and thereafter have not made any progress for further completion of the Complex? This shows mala fide intention on their part and, in fact, they never intended to complete the Complex, having already received 95% of the total basic price. This clearly amounts to deficiency in service on their part.  
11.           The complainants have prayed for the issuance of directions to the opposite parties to refund the total amount of Rs.50,58,385-20p already paid by them, along with interest at the rate of 218 per annum or in the alternative to pay interest on that amount at the said rate from the promised date of possession. He is entitled to the refund of the amount in case he does not want to keep the Agreement alive and wants to get the allotment of the space/flat in his favour cancelled or the opposite parties have abandoned the project. At the time of arguments, it was stated by the learned counsel for the complainants that the complainants are confining their prayer to that effect and do not want to press the direction claimed in the alternative.
12.           From the evidence so produced on the record, it can easily be concluded that the opposite parties had not made any further progress for completing the Project/Construction after they became entitled to 95% of the basic price of the space/flat and the same amounts to abandoning the Project itself. In these circumstances, by virtue of clause 8(b) of the Agreement, the complainants are entitled to the refund of the amount so paid by him along with interest at the rate of 10% per annum till the same is refunded. Therefore, the complainants are entitled to the refund of Rs.50,58,385-20p/-, along with interest at that rate from the date(s) of payment of different amounts till the actual payment thereof.
13.           The complainants invested his hard earned money in the Project of the opposite parties with the hope that complainant no.1 will be using the same for earning her livelihood by way of self-employment. On account of non-completion of the Project, he has been deprived of that opportunity. They suffered loss and injury on account of the said deficiency in service on the part of the opposite parties, for which they are entitled to the compensation. Keeping in view all the facts and circumstances of this case, we are of the opinion that Rs.1,00,000/- is the suitable compensation for the harassment and mental agony suffered by him.
14.           Accordingly, the complaint is allowed and the opposite parties are directed to refund the sum of Rs.50,58,385-20p, along with interest at the rate of 10% per annum from the date (s) of the payment of the amount(s) and to pay compensation of Rs.1,00,000/-, within a period of 30 days of the receipt of the certified copy of this order. They are also directed to pay Rs.11,000/- as costs of litigation.
15.           Arguments in this complaint were heard on 14.01.2015 and the order was reserved. Now the parties be communicated about the same.
16.           The complaint could not be decided within statutory timeframe due to heavy pendency of Court cases.

 

         

                                                              (Baldev Singh Sekhon)

                                                                   Presiding Member

 

                       

                                                             (Harcharan Singh Guram)

                                                                           Member

January 19, 2015.                                                          

(Gurmeet S)